CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 novembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s13F94BE1 { font-family:Arial; letter-spacing:-0.2pt } .sD0F961A5 { font-family:Arial; font-style:italic; letter-spacing:-0.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s619FCD1 { font-family:Arial; list-style-position:inside } .s13783063 { width:6.24pt; font:7pt 'Times New Roman'; display:inline-block }   Communicated on 13 November 2017   FIRST SECTION Application no. 4006/17 Monika KAMIŃSKA and others against Poland lodged on 4 January 2017 STATEMENT OF FACTS A list of the applicants is set out in the appendix. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background to the case The applicants were J.F.’s partner and his two minor daughters. Since 2006 the family have lived in Spain and only occasionally come to Poland. They came for Christmas in December 2008. 2.     J.F.’s arrest J.F. was not aware that any criminal proceedings had been instituted against him. On 7 January 2009 he went to the police station in order to collet summons ( odebrać wezwanie ). On the same date he was detained in order to serve a sentence for not having paid a fine imposed on him ( zastępcza kara pozbawienia wolności ) and was placed in Warsaw-Grochów Remand Centre, where he stayed until 15   January 2009. 3.     J.F.’s state of health during his detention J.F. suffered from dilated cardiomyopathy. He had high blood pressure and was overweight (175 cm height and 140 kg weight). He took medicine in order to lower the blood pressure and cholesterol, diuretics, antacids and beta-blockers. When detained (on 7 January 2009), he confirmed that he had been a cocaine user and was a heavy drinker. He had had two heart attacks. The prison doctor prescribed him medicine in order to lower his blood pressure and ordered a consultation with an internal-medicine doctor. On 12 January 2009 a chest X-ray showed that J.F.’s heart was enlarged. The radiologist who had prescribed the chest X-ray commissioned an internal-medicine consultation. On 14 January 2009 J.K. stated to a nurse that he had sleeping problems and slept during the day. His blood pressure was 145/80 and he had a heart rate of 70. On 15 January 2009 the nurse informed the doctor of J.F.’s worsening state of health. On the same day he was taken to the emergency ward of the Ministry of the Interior and Administration’s Clinical Hospital in Warsaw ( Oddział Ratunkowy Centralnego Szpitala Klinicznego MSWiA – hereinafter “the Clinical Hospital”), where examinations were carried out; he was then transferred to the Anin Institute of Cardiology. An aneurism was found in his thoracic aorta . On the same day he urgently underwent surgery. On 17 January 2009 he regained consciousness. However, he was suffering from respiratory insufficiency and was put on a respirator. On 21 January 2009 a CAT scan showed a haematoma in the applicant’s mediastinum. On 22 January 2009 he underwent another surgical procedure. However, he was still suffering from renal and cardiac insufficiency. On 25   January 2009 he died at the Anin Institute. 4.     Civil proceedings for compensation On 16 December 2009 the applicants lodged a civil action for compensation and an annuity against the State and Treasury - the Director General of the Prison Service. They complained that J.F. had died in custody on 25 January 2009 as a result of inadequate and belated medical assistance and inadequate conditions of detention. They further noted that he should not have been detained because of his state of health. During the proceedings the Warsaw Regional Court commissioned an expert opinion. The expert (a specialist in internal medicine) held that the information on J.F.’s state of health included in his medical documentation from Warsaw-Grochów Remand Centre had been skimpy. There was no information on whether J.F. had received and taken any pharmaceuticals, nor information about the surveillance of his arterial hypertension. Moreover, there was no indication if he had reported the deterioration of his state of health and whether his transfer to the emergency ward of the Clinical Hospital had resulted from his health’s sudden deterioration or the analysis of a chest X-ray conducted on 12 January 2009. J.F.’s cellmate, J.M., also gave evidence. He stated that J.F.’s health had constantly worsened and he had probably been given only vitamins. He also stated that there had been overcrowding and inadequate living conditions in Warsaw ‑ Grochów Remand Centre. However, according to the court, the credibility of the statements given by J.M. had not been supplemented by other evidence. The first applicant also gave evidence before the court. On 30 March 2015 the Warsaw Regional Court dismissed their civil action. The court held that according to the expert’s opinion there had been no medical negligence and J.F.’s death could have happened even outside the prison facility as the aortic aneurism had occurred suddenly. The court dismissed their civil action pursuant to Article 445 of the Civil Code as the applicants had no legal standing for protection of J.F.’s personal rights as a claim for compensation passes to the heirs only if it has been acknowledged in writing or if the court action was brought when the party was still alive. Moreover, under Article 446 § 3 of the Civil Code the court could award appropriate compensation to relatives of a deceased if their situation had significantly deteriorated as a result of the person’s death. However, in the present case as the State Treasury could not be held responsible for the death of J.F., the compensation could not be granted. The court further held that the conditions under Article 417 of the Civil Code (see Relevant domestic law below) had also not been met in the present case. The court considered that J.F.’s illness had not been caused by the conditions of detention. Therefore, there had been no causal link between the death and the conditions of detention. The applicants in their appeal submitted that the court of first instance had not justified why it had disregarded the statements given by J.M. Secondly, they submitted that the Regional Court had not analysed in detail the actions taken by Warsaw-Grochów Remand Centre, and had considered uncritically the check-ups done in the prison facility appropriate. Lastly, they considered that the domestic court had violated the provisions of the European Convention on Human Rights by finding that the State Treasury could not be found responsible for the death of J.F. On 7 October 2016 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court in principle agreed with the Regional Court’s findings of fact and conclusions. However, it held that, contrary to the Regional Court’s conclusions, the acts of the medical personal in the prison facility fell under Article 417 of the Civil Code. Nevertheless, their acts had been conducted in accordance with the law and the applicants had not proven a causal link between them and J.F.’s death. Moreover, it was not shown that a chest X-ray conducted at an earlier point would have enabled detection of the aneurism. The judgment was final. B.     Relevant domestic law 1.     Constitutional provisions Article 77 § 1 of the Constitution refers to the State’s civil liability in the following way: “Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law.” In a judgment (no. SK 18/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 § 1 of the Constitution. It held, inter alia , that: “In accordance with Article 77 § 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act [implied] culpability ( subiektywnie zawinione ). ... Having regard to the conditions for [State] liability laid down in Article 77 § 1 of the Constitution as previously analysed, there is no doubt that ‘the personal culpability of a State official’ does not form part of the list of conditions necessary for liability on the part of the public authorities.” 2.     Code of Civil Procedure Article 417 § 1 of the Civil Code provides as follows: “The State Treasury or[, as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage [ szkoda ] caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” COMPLAINTS The applicants allege a breach of Article 2 of the Convention in its substantive and procedural aspect. In their view, the authorities failed in their positive duty to provide J.F. with adequate medical care in detention. Despite the fact that he was suffering from dilated cardiomyopathy, only on 12 January 2009 did he have a chest X-ray and only three days later was he transferred to hospital. Moreover, they complain, under Articles 2, 6 and   8 of the Convention, that the judicial proceedings failed to clarify all the circumstances of the case and that they were unfair.   QUESTIONS TO THE PARTIES 1.     Has J.F.’s right to life, ensured by Article 2 of the Convention, been violated in the present case? Reference is made to the alleged inadequacy of the medical treatment provided to him in Warsaw-Grochów Remand Centre.   2.     Have the procedural guarantees under Article 2 of the Convention been complied with in the present case (see   Salman v. Turkey [GC], no.   21986/93, §   104, ECHR 2000-VII; Hugh Jordan v. the United Kingdom , no. 24746/94, § 141, 4 May 2001; Petrović v. Serbia , no. 40485/08, § 80, 15July 2014; Skendžić and Krznarić v. Croatia , no. 16212/08, § 67, 20   January 2011 )?   Appendix       Monika Kamińska is a Polish national who was born in 1981, lives in Warsaw and is represented by M. Gąsiorowska, a lawyer practising in Warsaw.     Giselle Maria Kamińska is a Polish national who was born in 2005, lives in Warsaw and is represented by M. Gąsiorowska, a lawyer practising in Warsaw.     Michelle Kamińska is a Polish national who was born in 2006, lives in Warsaw and is represented by M. Gąsiorowska, a lawyer practising in Warsaw.